FACTORES QUE INTERVIENEN EN EL RENDIMIENTO ACADÉMICO

Beyond seeking to increase enforcement and deterrence directly,

legislatures might also turn to diagonal enforcement in order to gain influence

over multijurisdictional policy. For various reasons, a legislature might see

value in controlling the content of regulatory policy.

A legislature (usually) cannot require other states to adopt its standards, so

it must pursue policy influence by other means.

_{One strategy would be for a}

legislature to attempt to capture a larger share of enforcement litigation,

thereby increasing its share of policymaking influence. The mechanism is

simple: The more cases in your courts applying your law, the greater the

impact of your standards on regulated parties’ behavior. This is a litigation

version of the “California effect”

_{or a legislative version of Klerman and}

178. This is not the place for an empirical assessment of the differences among domestic public enforcers, foreign public enforcers, and private enforcers. And, in any event, the selection of enforcers is ultimately a legislative choice reflecting legislative judgment.

179. See, e.g., 15 U.S.C. §§ 1194(a), 1264(d), 1477, 1679h (2016).

180. These explanations are not necessarily inconsistent with increasing enforcement, but they are not dependent on that preference either.

181. This is what Donald Childress would call the “supply side in the transnational law market.” See Childress, supra note 152, at 1008-09.

182. See generally Brian Galle & Joseph Leahy, Laboratories of Democracy?: Policy Innovation in Decentralized Governments, 58 EMORY L.J. 1333, 1368-70 (2009) (discussing literature on policy diffusion and applying it to legal analysis). In addition to the market capture account described below, states could resort to other tools of so-called soft power. See generally JOSEPH S.NYE,JR.,SOFT POWER:THE MEANS TO SUCCESS IN WORLD POLITICS 1- 32 (2004) (discussing various tools of soft power in international relations derived primarily from a state’s culture, values, and foreign policies).

183. See DAVID VOGEL,TRADING UP:CONSUMER AND ENVIRONMENTAL REGULATION IN A

GLOBAL ECONOMY 5-6, 259 (1995). The basic idea is that because California is such a large market, it is cheaper for firms to comply with strict California standards for all

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Reilly’s “forum selling.”

By whatever name, were a legislature to authorize diagonal enforcement

that was more attractive to foreign executives than enforcement in the

executives’ home courts, those executives might substitute diagonal for

domestic enforcement. The result would be that the authorizing legislature

would assert more control over regulatory policy.

_{This regulatory market}

capture could also have dynamic effects, motivating foreign legislatures to

bring their laws into closer alignment with the first state’s laws.

Although introducing a new cause of action sounds pro-regulatory, this

explanation for diagonal enforcement could be consistent with the usual public

choice account that favors concentrated interests—often those of large

defendants.

_{For one thing, concentrated interests might favor a single set of}

requirements over multifarious standards, and one jurisdiction hearing all

enforcement actions and applying only its own law would achieve that end.

Further, and also consistent with a public choice account, a legislature could

products than to differentiate between high-standard and low-standard markets. See id.

Here, when a jurisdiction applies its law to a large class of a firm’s disputes, the firm might elect to follow those standards generally.

184. In Klerman and Reilly’s conception of “forum selling,” courts attempt to attract litigation in furtherance of “prestige, local benefits, or re-election.” See Daniel Klerman & Greg Reilly, Forum Selling, 89 S. CAL. L. REV. 241, 242 (2016). It is possible that legislatures see increased court business as an independent benefit, though I doubt that any such benefit is sufficient on its own to justify diagonal enforcement authorizations. Instead, the “forum selling” here seeks to extend the reach of the government’s substantive laws.

185. Domestically, this could be a story of federalization. Cf. Issacharoff & Sharkey, supra

note 14, at 1358, 1368-69 (using the term “federalization” to describe a process by which federal law has usurped traditional areas of state law authority).

186. This suggestion has the feel of a reciprocity rule but without the teeth. Cf. Parpal & Sneeden, supra note 82, at 264-74 (discussing a proposed reciprocity rule for antitrust). Note that this dynamic effect need not be limited to substantive law; diagonal enforcement might hasten the spread of procedural mechanisms such as the U.S.-style class action. See generally Zachary D. Clopton, The Global Class Action and Its Alternatives, 19 THEORETICAL INQUIRIES L. 125 (2018) (discussing foreign countries’ adoption of class action-like mechanisms).

187. See generally Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J.ECON. 371 (1983) (articulating a classic public choice account); Frank B. Cross, Essay, The Judiciary and Public Choice, 50 HASTINGS L.J. 355 (1999) (applying public choice theory to the litigation context).

188. See, e.g., J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U.PA.L.REV. 1499, 1509 (2007) (“Industry pressure for a federal standard may . . . mount when regulatory uncertainty, induced or exacerbated by inconsistent state activity, produces significant costs . . . .”). Disuniformity is a common critique of redundant enforcement. See, e.g., Burbank et al., supra note 12, at 667-68. But when redundant enforcement reduces other lawmakers’ relative power or influence, it might result in more uniformity rather than less because there will be fewer laws that matter.

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craft a regulatory regime that captures the market but also is less punitive than

its alternatives.

_{A legislature so inclined would race toward (but not to) the}

bottom.

_{The limit would be that the legislature could not reduce court access}

and expected recoveries to such an extent that foreign enforcers are induced to

shop for more attractive forums elsewhere.

In these ways, a legislature that values policy influence—independent of

any particular level of deterrence—might look to diagonal enforcement as a

means of affecting the interstate regulatory market.